CHINESE COURT BILL 


HEARINGS 

BEFORE THE COMMITTEE ON FOREIGN AFFAIRS 
HOUSE OF REPRESENTATIVES 


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WASHINGTON 

GOVERNMENT PRINTING OFFICE 




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CHINESE COURT BILL 

Committee on Foreign Affairs, 

Wednesday, March 11,1908. 

The subcommittee met this day at 10.30 a. m., Hon. Edwin Denby 
in the chair. 

STATEMENT OF STIRLING FESSENDEN, ESQ,, OF SHANGHAI, 

CHINA. 

Mr. Denby. Please give your full name. 

Mr. Fessenden. My name is Stirling Fessenden. 

Mr. Denby. Where do you reside? 

Mr. Fessenden. At Shanghai, China. 

Mr. Denby. Are you a member of the Shanghai bar? 

Mr. Fessenden. I am. 

Mr. Denby. Before what courts do you practice? 

Mr. Fessenden. Principally before the United States court for 
China, and the British supreme court, and the mixed court. I have 
also practiced in the Austrian, Norwegian, Russian, Danish, and I 
think German courts, and the American consular courts; in fact, 
nearly all the consular courts, at one time or another. 

Mr. Denby. How long have you been in Shanghai? 

Mr. Fessenden. About five years. 

Mr. Denby. You were there, then, before the establishment of the 
United States court for China? 

Mr. Fessenden. Yes; practicing law before that. 

Mr. Denby. Will you briefly state what the judicial system of the 
United States was there, prior to the establishment of the United 
States court for China? 

Mr. Fessenden. Prior to the establishment of the United States 
court for China the judicial functions were all vested in the United 
States consul, who acted judicially as judge of the consular court, 
and his jurisdiction included practically every class of case or cause 
of action which might arise, not only between American citizens, but 
in any case where an American citizen was a defendant, and in fact 
he carried out all the judicial powers provided by the treaties with 
China or permitted under those treaties and covered by the United 
States statutes and general laws of the United States, so far as could 
be applied out there. 

Mr. Denby. The whole being under the extra-territorial policy 
exercised by the United States in China? 

Mr. Fessenden. Yes, sir. 

Mr. Denby. Now, Mr.,Fessenden, can you briefly state what the 
difficulties and the limitations of that system of jurisprudence were? 

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CHINESE COURT BILL. 


Mr. Fessenden. Well, to my mind, perhaps the chief difficulty 
was the fact that the consuls rarely, if ever, were trained lawyers, 
and the nature of the cases, more especially those involving commer¬ 
cial law, often involved very complicated and difficult points of law, 
which it was almost practically impossible for a man without any 
legal training properly to decide. Then aside from that, there was 
no corps of trained assistants who understood the procedure, and 
really no proper equipment for carrying out the functions of the 
court. Then it was difficult for a consul to execute all the law which 
really was in his hands, because there was no real machinery provided 
for it, and the other functions of his office, namely, the diplomatic 
functions, interfered to a great extent with the consul discharging 
all these duties at one time. 

Mr. Denby. This, of course, was quite regardless of the character 
of the consuls, which, in some cases, may have affected it ? 

Mr. Fessenden. Yes. In some cases, however, the character of 
the consul affected it. 

Mr. Denby. Assuming that we always had good consuls, there 
were still inherent difficulties? 

Mr. Fessenden. Yes; from the nature of the thing itself. 

Mr. Denby. As to the law which these consuls administered, was 
that law well determined, and was it determined what laws the 
consuls should administer? 

Mr. Fessenden. No. The only laws that the consuls had were 
the old rules and regulations laid down by the minister in the old 
days, which had been added to from time to time in the attempt to 
improve them; but it really was more or less futile. 

Mr. Denby. The statute gives the minister power to amend those 
regulations if he chooses? 

Mr. Fessenden. Yes; and in so far as they were applicable, the 
statute laws of the United States applied, but it was only in rare 
cases indeed that you could find a statute which directly applied 
to a cause of action which would come before a consul. 

Mr. Denby. The statutes you refer to are the statutes of the 
United States so far as they are applicable, and the special statutes 
governing the case? 

Mr. Fessenden. Yes: the great body of substantive law which 
governs the relations of man to man could only be found in the 
common law, and of course it has been a question which lawyers 
and judges and everybody else have discussed pro and con, as to 
what the common law of the United States is, or whether there is 
a tangible and definite body of law known as the common law of the 
United States or not. 

Mr. Denby. Just on that point, did not the judge of the United 
States court, Judge Wilfley, make a rather sweeping definition of 
the common law, stating practically, in the Roberts will case, that 
the common law is what was enforced in England at the time we 
declared our independence, and such laws as have been generally 
accepted throughout the United States by the various legislatures? 

Mr. Fessenden. Yes. 

Mr. Denby. The advent of that court helped to cure that defect 
considerably, did it not? 

Mr. Fessenden. Yes. Before that we were in the situation, 
practically, of living in the twentieth century and attempting to 
apply the laws of the seventeenth century. 


CHINESE COURT BILL, 5 

Mr. Denby. That meant that prior to the advent of the court and 
prior to the Roberts will case decision, particularly? 

Mr. Fessenden. I do not think it was in the Roberts will case 
that that common law decision was made. I think it was made in 
another case. 

Mr. Denby. It was in a case of obtaining money under false 
pretenses ? 

Mr. Fessenden. That was the Biddle case. 

Mr. Denby. Yes; and that part of the decision was upheld by the 
court of appeals. 

Mr. Fessenden. Yes; I think so. After reading the decision of 
the appellate court, there was some question in my mind whether 
they based it exactly on the same reasons as did the judge of the 
United States court for China. 

Mr. Denby. That leaves it still more necessary that that law shall 
be corrected and improved? 

Mr. Fessenden. My impression is that the appellate court was 
rather inclined to go on the ground that the situation there in China 
was somewhat analogous to Government property here, like a post- 
office, or anything of that sort; that the general common law of the 
United States extended over American citizens there, as if in a sense 
China were regarded as United States territory, and I believe they 
made that a somewhat important basis of the decision. I am only 
stating that from recollection. 

Mr. Denby. Of course the law in the United States now is that on 
a Government reservation or on Government property the law of the 
locality in which that reservation is situated, in the absence of other 
United States law governing it, shall be held to apply? 

Mr. Fessenden. Yes. 

Mr. Denby. And it would be hard to know, if we regarded China 
as a reservation in that sense—it would be hard to know what the 
law is? 

Mr. Fessenden. Yes; that is where the uncertainty as to exactly 
what was meant by this decision arose. The appellate court judge 
in his written opinion was somewhat obscure on that point- 

Mr. Denby. Leaving the matter still in some doubt? 

Mr. Fessenden. Yes. 

Mr. Denby. And one of the difficulties in that question is, as I 
understand it, that there are certain crimes and certain rights that 
are not touched upon at all by the United States statutes and the 
common law, concerning which we had no law to govern? 

Mr. Fessenden. Yes. I can give you an illustration. The crime 
of embezzlement is not a common-law crime and never was. There 
is perhaps more than one statute of the United States covering 
embezzlement on the part of Government employees, but there is no 
United States statute which applies to embezzlement generally, so 
that there was no law under which a man could be legally punished 
for embezzlement committed in China. 

Mr. Denby. That being covered by the provision that the law 
governing localities should govern? 

Mr. Fessenden. Yes. 

Mr. Denby. It was found in China at that time that there was 
very great difficulty in administering substantial justice and deter¬ 
mining questions among people, civil and criminal ? 



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CHINESE COURT BILL. 


Mr. Fessenden. Yes; very great difficulty; and that became 
more apparent as the magnitude of American interests increased 
there. When the interests were very small the questions which came 
up were not so important; but to-day there are a great many business 
interests of very large magnitude, and cases involving very large 
amounts of money come up for adjudication. 

Mr. Denby. And there are a great many more Americans there 
capable of committing crimes than there used to be, because there are 
more Americans there? 

Mr. Fessenden. Yes. 

Mr. Denby. I do not mean to make any reflection on the character 
of Americans in general. 

Mr. Fessenden. Yes. 

Mr. Denby. Then you, as a resident in Shanghai, amenable to 
these laws as an attorney, were heartily in favor of the creation of the 
United States court for China ? 

Mr. Fessenden. Absolutely. 

Mr. Denby. Were you admitted to that bar at once on the forma¬ 
tion of the court? 

Mr. Fessenden. Yes; after taking an examination. 

Mr. Denby. Now, Mr. Fessenden, you, of course, have made a 
study, as a part of your duty as a member of that bar, of the act cre¬ 
ating the court? 

Mr. Fessenden. Yes, I have. 

Mr. Denby. Briefly, can you recall some of its deficiencies? I 
assume there were deficiencies. 

Mr. Fessenden. The chief deficiency as a practical matter was 
the lack of any criminal code, or any civil code, either. That is, 
there was no definite law on all the various subjects, commercial and 
otherwise. 

Mr. Denby. Briefly, it left the deficiencies of the law to be admin¬ 
istered practically as before ? 

Mr. Fessenden. Yes. 

Mr. Denby. So you have felt all along the need of a new code act 
of some character, have you not? 

Mr. Fessenden. I have always felt that it would be impossible 
for any court, however constituted, and no matter how able the 
judge may be, to satisfactorily administer the law out there, unless 
he had a proper body of law to administer. As it is to-day, he has 
no proper body of law. 

Mr. Denby. That is the point. 

Now I call your attention to the bill H. It. 17142, which is the bill 
introduced by myself, seeking to extend to China that very body of 
laws which is now universally held to be necessary; and with your 
permission we will proceed and discuss the bill, section by section, 
and I will ask your opinion on the various proposed changes in the 
law which are set forth in this bill. 

First, as to the establishment of the court, have you already read 
the bill ? 

Mr. Fessenden. Yes; several times. 

Mr. Denby. Now, first, as to the establishment of the court: The 
first section is that the jurisdiction shall be exercised through the 
United States court for China. There was a court to be called the 
United States court, consisting of a judge, a district attorney, a 


CHINESE COURT BILL. 


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clerk, and a marshal. The new portion there is that of a public 
administrator for China, with certain defined duties. Will you give 
us an opinion concerning that proposed official? 

Mr. Fessenden. My own individual opinion as to that is that I do 
not hardly consider, from my experience, that a public administrator 
is really necessary. The total number of Americans in China can 
not at the outside be over 4,000. 

Mr. Denby. I would put it a little more than that. 

Mr. Fessenden. Between 4,000 and 5,000, and the number of 
estates which the United States court of China has had to administer 
in the year it has been in operation has been small. My impression, 
speaking from memory, is that it has not been at the outside more 
than ten or twelve. 

Mr. Denby. We shall have the exact figures from the report of the 
court. 

Mr. Fessenden. Most of the cases, in my experience, in which I 
have appeared in the court, are comparatively simple; that is, they 
simply require the appointment of an administrator, who prepares 
and submits an inventory. 

Mr. Denby. Under bond?- 

Mr. Fessenden. Yes, under bond, and reports from time to time 
to the court, and carries out their instructions and directions; so 
that the actual business or work which the court has to do is com¬ 
paratively small in the matter of estates, their chief work being to 
interpret the law and advise in its administration. But one diffi¬ 
culty about it is that there is no bonding company in China, so that 
the bonds furnished by the administrators require their obtaining 
their friends as sureties, which is not exactly difficult, but at times 
it is rather unpleasant. 

Mr. Denby Let me go a step further. The bill at present gives 
the United States court for China jurisdiction in all cases involving 
an amount in excess of $500, or criminal cases other than those in 
which sixty days’ imprisonment or $100 fine may be imposed, and 
those given a review by the higher court. That jurisdiction of what 
we might call the justice-court variety is left with the consul-general 
at Shanghai ? 

Mr. Fessenden. Yes. 

Mr. Denby. Do you not deem it advisable to leave that jurisdic¬ 
tion there, and if not, what is your objection? 

Mr. Fessenden. My opinion is that it would be far better to take 
away all the judicial functions of the consul-general in Shanghai for 
this reason: That that office is in a great sense different from any 
other consular office in the service, owing to the peculiar conditions 
of extra-territoriality. The real functions of the consul there, aside 
from the usual consular duties, include those of a diplomat, really. 
Shanghai is the great commercial center of all the northern half of 
China, and even a greater area than that. 

Mr. Denby. It is the greatest commercial port in the Orient? 

Mr. Fessenden. Yes. It is the greatest commercial port in the 
Orient, and the consul-general there is brought into official and diplo¬ 
matic relations with the different consular and diplomatic representa¬ 
tives of some seventeen foreign nations and the Chinese, and where so 
many nations live in a single community like that and in a country 
so far distant from their own there are all sorts of difficult diplomatic 


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CHINESE COURT BILL. 


questions arising in regard to the internal conditions of that settle¬ 
ment which effect American interests, commercial, legal, and other¬ 
wise, all these things being outside the usual duties of a consul. Then 
there is another reason that I regard as equally important, and that 
is that our consulate should be regarded by the Chinese to be of as 
high rank in every respect as that of any other foreign nation, because 
the Chinese pay particular attention to appearances and convention¬ 
alities and all that sort of thing, which they class under the head of 
“face pidgin/’ The other nations, like England, Germany, and 
France, the greater nations, have placed all the minor judiciary 
powers, which correspond very largely to our magistrate’s court or 
police court, in the hands of a vice-consul or assessor, or at least a 
minor official connected with the consulate. 

Mr. • Denby. The public administrator’s duties under this bill 
largely consist, in addition to his administration of estates, in his 
performance of that minor judicial function. Is it your opinion 
that it should not be vested in the public administrator, or vested 
in a United States official—the vice-consul or some other one ? 

Mr. Fessenden. In my opinion it would be better to put it in the 
hands of a vice-consul entirely. 

Mr. Denby. For what reason particularly? 

Mr. Fessenden. Well, under the provisions of this bill it would 
appear that this so-called public administrator, as I understand, 
would act also as assistant judge, aside from being public admin¬ 
istrator and judge of the consular court. 

Mr. Denby. He may even act under this bill as an independent 
judge on circuit, when the judge in chief can not go? 

Mr. Fessenden. Yes; and it seems to me, from my experience 
out there, that that particular plan would put almost all the work 
on this one man or official. It seems to me it would put two-thirds 
of the entire work which really belongs to the court in the hands of 
this one man, leaving a chief judge with double the salary who is not 
doing anywhere near the amount of judicial work of this minor judge; 
and in addition to that, taking all the judicial work of that consulate 
over any given period, it does not amount, in my judgment, to more 
than enough to really occupy the time of one judge more than 
enough to keep him busy. It is true that since the establishment of 
that court out there the court has been busy and full of work; but 
that work, in my judgment, has been incidental to the establishment 
of a court under the peculiar conditions under which this court was 
established, and due to the fact that they had no code of laws and 
were obliged to spend days and days of study and work in the simplest 
cases. 

Mr. Denby. To try to get a law to fit the crime? 

Mr. Fessenden. Yes; to try to get a law to fit the crime; whereas 
if we had a proper code we could do away with all that; and in my 
judgment one man could do all the probate work and all the other 
-work of the court with ease with the exception of these minor police 
court cases, etc., which ought to be put into the hands of a vice-consul, 
or commissioner, or some minor official. 

Mr. Denby. With an appeal to the other court in certain cases? 

Mr. Fessenden. Yes. I can safely say I have probably tried more 
cases in that court than any lawyer there, except the district attorney; 


CHINESE COURT BILL, 


9 


and, speaking very frankly, it does not seem to me that the disposi¬ 
tion of the work made by this bill is entirely just or fair or required 
by conditions. 

Mr. Denby. That is a fair statement. In your observation of mat¬ 
ters in Shanghai and the working of the consulate-general in Shanghai 
what would you say of the work thrown upon the consul-general by 
his judicial plus the other duties? I think you covered that partially 
already. 

Mr. Fessenden. As I say, I think it is unjust to the consul-general 
himself, and I think it is prejudicial to the consular service to require 
a man whose sole attention should be given to these more important 
questions which I have mentioned to be obliged to be bothered and 
troubled with the minor duties of a small magistrate’s court. I mean 
it is beneath the dignity of the position, to begin with. 

Mr. Denby. Can yon give us any idea of the amount of time the 
consul is obliged to give to this function? 

Mr. Fessenden. I could not give an accurate opinion as to that; 
but, taking the actual cases which come before the consul-general and 
the number of people he is obliged to see in connection with them, and 
the incidental, bother, I should say that more than one-half his time 
is devoted to that one minor branch of the work. 

Mr. Denby. Which, considering that he is the chief consular officer 
in Asia, is entirely wrong and absurd. 

Mr. Fessenden. Yes. That is my opinion, that it is absolutely 
absurd that that condition should be allowed to exist there. 

Mr. Denby. Who sits as assessor in the mixed court when a citizen 
of the United States is a party to the proceeding? 

Mr. Fessenden. Usually some man attached to the staff of the 
United States consulate. 

Mr. Denby. Not the consul-general? 

Mr. Fessenden. Not the consul-general. No consul-general could, 
without absolutely ruining the prestige of the office and his own per¬ 
sonal dignity, sit in the mixed court, because as a matter of fact and 
in the eyes of the Chinese the consul-general greatly outranks the 
Chinese magistrate who presides in that court. 

Mr. Denby. Give briefly an account of the mixed court and its 
functions. 

Mr. Fessenden. The mixed court is a Chinese court which has 
jurisdiction over the Chinese in what is known as the international 
concession. That is, more accurately speaking, it is really called the 
Anglo-American settlement, because the French have a mixed court 
in their settlement. This court has jurisdiction over all criminal and 
civil matters in which Chinese residents in that district are defendants. 

Mr. Denby. The court is primarily a native court, presided over 
regularly by a native magistrate? 

Mr. Fessenden. Yes; always. It is customary, whenever the 
interests of a foreigner are involved, to have an assessor from the 
consulate of 'his nationality sit on the bench with the magistrate, 
but that assessor has no power or authority whatever beyond what 
moral suasion he can bring to bear on the magistrate himself. 

. Mr. Denby. He simply watches the proceedings? 

Mr. Fessenden. Yes; he simply watches the proceedings, with 
no power to issue an order or exercise any influence. 

Mr. Denby. Who pays that magistrate? 


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CHINESE COURT BILL. 


Mr. Fessenden. The Chinese Government, according to my 
impression. 

Mr. Denby. Is the constitution of that court a treaty matter? 

Mr. Fessenden. I am not clear, but I think it is either a treaty 
matter or a matter arranged by the foreign ministers at Pekin and 
afterwards sanctioned in a way that would have the same effect as 
a treaty. 

Mr. Denby. Now, I will not ask you, Mr. Fessenden, anything 
about the salaries of these minor officials mentioned here, or any 
officials, because that is largely a matter of personal opinion. 

Mr. Fessenden. I do not care to express an opinion on that. But 
there is one point, before you go on, that I would like to mention, 
and that is, that I was a member of the executive committee of the 
American Association in China when the memorial which was pre¬ 
sented to Congress was prepared, and this suggestion of an additional 
judge was made by the then president of the association and carried 
through by his influence, with the idea that if the additional judge 
should be appointed for that court, there should be some provision 
by which, if litigants desired it, a case involving any important point 
of law could be heard before two judges sitting together, and that 
was the real reason for the suggestion that this provision be made 
in the bill. That was really the controlling one. It was understood 
very well by those of us who were interested at the time, that if such 
a bill were presented and became a law, other duties might be placed 
in those judges’ hands, and the controlling idea, as I say, was that 
important cases might be heard before both judges, as that might 
tend to counteract any deficiency growing out of a system where a 
jury trial does not exist. 

Mr. Denby. Do you find that point covered in the bill? 

Mr. Fessenden. That point is not covered in the bill. 

Mr. Denby. You take it that if the public administrator and judge 
were created under this act as it stands, he would not be authorized 
to sit with the other judge, and the other judge would not be author¬ 
ized to ask him to ? 

Mr. Fessenden. Yes; and my idea would be, if it were deemed 
wise to appoint another judge there, some such provision as that 
should be made, because the decision of a case by two judges would 
greatly tend to lessen the irritation existing out there when one judge 
is the sole judge of both the law and the facts. 

Mr. Denby. Now, as to the duties of court officials, I presume you 
have no particular recommendation? 

Mr. Fessenden. Yes; there is one point about that. That appears 
on page 5, beginning at the bottom of page 4. 

Mr. Denby. Line 25, page 4? 

Mr. Fessenden. Yes. In the detection of crime and the investi¬ 
gation of criminal cases, and so forth, it gives the power to the dis¬ 
trict attorney to subpoena witnesses to appear before him, and to 
administer oaths, . and compel them to testify, and to practically 
adjudge anyone to be guilty of perjury who, in a proceeding of that 
sort, does not tell the truth. I think myself that it may be possible 
that the district attorney perhaps needs somewhat greater powers for 
the investigation of crime than he has; but if that is done I am 
strongly of the opinion that it is not right or proper to put this thing 
solely in the hands of one individual; that is, the power of issuing 


CHINESE COURT BILL. 


11 


subpoenas, and the power to examine, and practically the power of 
deciding, whether the witness has told the truth or not. 

Mr. Denby. And the power of prosecuting for perjury? 

Mr. Fessenden. Yes. It is all in the hands of one man. I have 
no personal feeling about it, because the district attorney is a per¬ 
sonal friend of mine; but I do think that the probabilities and possi¬ 
bilities of misuse of a thing like that, though not from intention, 
should prompt one to be careful in drawing such a provision. 

Mr. Denby. Possibly it may be misused overeasily? 

Mr. Fessendei^. Yes, overeasily; and matters of peculiarity of 
temperament, or intellect, or prejudice would place him in the posi¬ 
tion of abusing his power very greatly and there would be no redress. 

Mr. Denby. In other words, you think that is too broad ? 

Mr. Fessenden. Yes, too broad and too strong; and so far as I 
know, the only reason for its adoption is that they think they need 
more power. A provision similar to this has been in force in the 
Philippines, and the position taken is that the conditions in Shanghai 
are so bad that they require the same drastic methods as in the 
Philippines. I do not agree, with that. I know the conditions in 
Shanghai have been bad, but not so bad as this bill would seem to 
indicate. 

Mr. Denby. The conditions in China are getting better, in your 
opinion ? 

Mr. Fessenden. They are getting better. 

Mr. Denby. What change would you suggest in that? 

Mr. Fessenden. I would point out that although there is no sys¬ 
tem in force in China similar to our grand-jury system, even to-day 
the district attorney can lay an information at any time he sees fit, 
when in his judgment he can present evidence, and of course that 
gives him the power to subpoena witnesses in court, to try the very 
case in which he has laid this information. 

Mr. Denby. But the case must be in open court in that case? 

Mr. Fessenden. Yes. But my suggestion would be that if, in the 
judgment of the committee, the power should be extended in this 
direction, the provision should be to the effect that the district attor¬ 
ney must conduct this examination before either a vice-consul, or a 
consul, or some other official. 

Mr. Denby. Or the judge of the United States court? 

Mr. Fessenden. Yes; so that the whole power of subpoenaing or 
administering oaths and examining and deciding the results of exam¬ 
ination should not be in the hands of the prosecuting officer alone. 

Mr. Denby. Your idea is that this function is supposed to corre¬ 
spond to a certain extent to that of a grand jury? 

Mr. Fessenden. Yes. 

Mr. Denby. But that in the case of a grand jury there are restric¬ 
tions from the mere presence of the jury and the other officers of the 
court, whereas in accordance with your view this looks very much 
like a star-chamber proceeding? 

Mr. Fessenden. Yes. 

Mr. Denby. And while you would not like to take away the power 
the district attorney holds, or the power given him under this bill, 
you are looking to the proper exercise of that power and would compel 
it to be done under certain restrictions? 

Mr. Fessenden. Yes. - ; 


12 


CHINESE COURT BILL. 


Mr. Denby. But your amendment would not take away from him 
any power? 

Mr. Fessenden. No. 

Mr. Denby. Your suggestion is that he must exercise his power in 
the presence of a court or some functionary? 

Mr. Fessenden. Yes. It removes the star chamber feature and 
the appearance of an inquisition, but it would leave to him the same 
powers as are provided in this section. 

Mr. Denby. I think your comments on that are fair and seem to 
be pretty sound. Have you thought over the form of a proposed 
amendment ? 

Mr. Fessenden. No; but I think that my suggestion that it be 
made before a consular official who has the power to administer an 
oath, or before one of the judges, would cover it. 

Mr. Denby. We might, then, just say, after line 9, “ Provided , 
however , That the proceeding shall take place in the presence of a vice- 
consul or an official of the United States consular court for China, 
or of the United States courts for China, who shall administer the 
oath.” 

Mr. Fessenden. Yes; and in whose presence the examination shall 
be conducted. 

Mr. Denby. Now I will ask you as to the paragraph on page 5, line 
21, if you have any suggestion to make with regard to this clause, that 
“The district attorney shall have authority to employ, subject to the 
approval of the court, assistants on behalf of the United States in 
connection with the investigation or conduct of a case in which the 
United States is or may become a party.” 

Mr. Fessenden. I do not see any objection to it. I think it would 
be very rare that an occasion would arise when it would need to be 
exercised. 

Mr. Denby. Now read on, and if I want to ask you anything I will 
do so. 

Mr. Fessenden. On page 6, line 6, the bill says: “The district 
attorney shall not engage in the practice of his profession during his 
tenure of office.” I think by all means that should be adopted, 
because while I am quite aware that the law in the United States 
allows district attorneys to engage in private practice, from practical 
experience out there I find that the fact that the district attorney was 
originally allowed to do it under the peculiar circumstances existing 
there has subjected the courts and the district attorney to certain 
criticism. 

Now I wish to call your attention to the fact that on page 3, lines 
13 to 16, you should carefully consider whether or not the position of 
marshal to the consulate-general at Shanghai is abolished by this act. 

Mr. Denby. Very well. You have now a marshal? 

Mr. Fessenden. Yes; and he combines the functions of several 
officers. He is marshal and deputy clerk and deputy consul all in one 
office. It was never clear to me under just which provision he got 
his salary. I think it came largely from fees. 

Mr. Denby. That whole question was thrashed out here, and I 
took it up with the Department, and I took it up with the chairman 
of appropriations, and I took it up here in the Committee on Foreign 
Affairs, and the universal opinion was that the fact that we put 
back the appropriation to pay the marshal operated to recreate the 
office had it ever been abolished. 


CHINESE COURT BILL. 


13 


Now, we come to a point, Mr, Fessenden, on which I know a 
violent difference of opinion exists at Shanghai itself. This bill pro¬ 
vides for assessors, and for the method of selecting them, and for the 
powers which they shall have. I would like you to read that over 
carefully and give your opinion of any features that you would like 
to comment upon. What is your opinion touching the provision for 
assessors—the stipulation that their findings shall not govern the 
judge, but that he shall be the sole judge of facts as well as of law; 
and the further provision that if they dissent from him, their dis¬ 
sent shall be forwarded as a part of the record to the court of appeals 
in case of appeal. In your opinion that is sufficient as it stands, is it, 
or do you think the assessors should have jury powers? If you do 
not care to give an opinion on that, never mind. 

Mr. Fessenden. My opinion is that the provision as expressed in 
the bill ought to work very well, because I go on the assumption 
that a judge sitting on the bench would not voluntarily go against 
the findings of fact of the assessor unless there was some very excel¬ 
lent reason for it, and the moral effect of the findings of fact by the 
assessor, would, of course, weigh considerably with any judge. 

Mr. Denby. Is not the argument somewhat similar to the argument 
which leads to giving to the courts in this country the power to set 
aside the finding of a jury when it considers it necessary to do so, 
so that you think that that provision with respect to assessors would 
be satisfactory? 

Mr. Fessenden. I think it ought to be tried, anyway; I think it 
is as good an arrangement as you could probably get* 

Mr. Denby. You would rather see that in the bill, or see the 
assessors vested with full jury powers? 

Mr. Fessenden. I think that would be as good as that. 

Mr. Denby. Now, on page 10, line 14, the bill provides: “The 
court may, for lawful cause shown, excuse from attendance generally 
or in a particular action any person liable to be summoned as assessor, 
and may, for like cause, discharge any assessor from further attend¬ 
ance.What lawful cause would be held to cover, in your opinion? 

Mr. Fessenden. I suppose that would cover the usual reasons for 
excusing a juror in this country. 

Mr. Denby. Relationship, or violent prejudice, or the causes set 
forth in the bill; business, or death in the family, or sickness ? 

Mr. Fessenden. Yes. 

Mr. Denby. You think that provision is safe? 

Mr. Fessenden. Yes. Of course in working it out practically it 
might result in your getting three assessors of a particular religious 
sect, and all that, whose opinion might be violent. You could not 
help that, however. 

Mr. Denby. The judge would have the right to refuse them. 

Mr. Fessenden. I think that is as good an arrangement as you 
could get. 

Mr. Denby. And besides the attorneys could protect their rights 
and set forth the reasons why they might be excused. Now let us 
consider the section as to jurisdiction. 

Mr. Fessenden. I do not see any objection to that. I think that 
is very good. 

Mr. Denby. I will ask you to state why it seems particularly desir- 
• able that the laws of the State of California, where not inapplicable, 
shall be extended to China? 


14 


CHINESE COURT BILL. 


Mr. Fessenden. There are two reasons in my mind. One is that 
in the opinion of a good many lawyers, who have examined the laws 
of California, it is held that those laws are reduced to a very definite 
form and shape and are not so voluminous and complicated as the 
laws of some of the other States. 

Mr. Denby. They were written by Justice Field, were they not? 

Mr. Fessenden. Yes; arid besides that our appeal court is in 
California, and our United States circuit court there is more familiar 
with California law and practice and procedure; and as we are just 
beginning, it is perfectly easy for us to conform our practice in a 
measure to that, so that there will be a sort of similarity between the 
two courts, in a sense. 

Mr. Denby. Have you any objection to our comments to make 
on the proviso of section 6, that the judge shall have authority from 
time to time to modify and supplement the rules of procedure? You 
will notice in that connection that his modification or supplementing 
shall only have the force and effect of law upon the approval of the 
Secretary of State. In other words, he is not left with plenary 
powers to make the modifications as he wants to. 

Mr. Fessenden. No. I think the provision is necessary, there 
being no established procedure for that court that you could really 
call an established procedure. It is necessary to evolve that as 
time goes on, and as the conditions there are very peculiar, eventually 
the procedure of that court will be a practice sui generis. It belongs 
to itself, and it must be a matter of experiment from time to time. 

Mr. Denby. % Is there anything in the appeal proviso, section 7, on 
which you have comments to make? 

Mr. Fessenden! Yes. There is one on page 14. I make the sug¬ 
gestion on the assumption that an additional judge shall be appointed 
there. It says: 

Provided, however, That there shall be no review of the findings of fact in actions 
of whatever nature originally involving a value not exceeding five hundred dollars 
or a penalty of one hundred dollars fine or sixty days’ imprisonment, or both, if heard 
without assessors, or, in which, whatever the value or penalty involved, being heard 
with assessors, the judge and a majority of the assessors shall have agreed in the 
findings. 

I suggest that if this additional judge is appointed, if a case of that 
nature is tried before a single judge he may appeal to the full bench 
and go no further. That is, if he is dissatisfied, let the litigant have 
the case submitted again to two judges sitting together. I think 
they have a provision or custom of that sort in the British court. 
There is a strong feeling in the community that they should not be 
shut off from appeal in all cases, because they have always had the 
right of appeal. I do not think any great harm would be done if you 
let that stand. 

Mr. Denby. If, on the other hand, the bill does not provide for 
the creation of a new judge, but if the power to try these minor 
cases is left with an official of the consulate-general, would you still 
believe in leaving an appeal with the United States court for China ? 

Mr. Fessenden. Yes; I think so, for this reason: Because out 
there, under the peculiar conditions of extra-territoriality, difficult 
points of law and questions of fact frequently arise that are very 
important and serious, and I think that should be left open in that 
way. 

Mr. Denby. But you would not want to carry the appeal beyond 
the United States court for China, would you? 


CHINESE COURT BILL. 


15 


Mr. Fessenden. No, I do not think so, so long as in all these minor 
actions you could have assessors to find the facts. If you gave them 
assessors, no appeal; without assessors, then an appeal. 

Mr. Denby. Now, as to the jurisdiction of consular courts in rela¬ 
tion to the removal of actions; you notice that it states the consular 
courts shall have concurrent jurisdiction? 

Mr. Fessenden. Yes; I noticed that. 

Mr. Denby. Would you make that exclusive? 

Mr. Fessenden. There would probably be cases of such magni¬ 
tude that parties would prefer they should go into the United States 
court for China in the first instance. You have provided for that, I 
think. It would seem to me .that it might possibly be better to 
substitute the word “exclusive” for “concurrent” in line 14, it 
being of course understood that an appeal will lie from the decision 
of the consular court to the United States court for China in all cases. 
I do not see any reason for giving a concurrent jurisdiction, which 
apparently means that a man may bring his action in any court he 
wishes. If you are going to give concurrent jurisdiction, you might 
just as well have no consular court, practically. 

Following up the same line of argument, I would suggest, if the 
committee concurs, that the phrase “concurrent jurisdiction” should 
be changed to “exclusive jurisdiction,” and that in lines 11 to 15, on 
page 15, the words “or on its own motion and for reasons to be made 
of record” be stricken out. 

Now, coming to bankruptcy and patents and trade-marks, there is 
one thing that I want to offer as a suggestion. I think the provision 
itself is all right, although at the outset there may be difficulty in 
administering all these things under the peculiar conditions. But 
I want to suggest this to you: As the bill is drafted, it seems to me 
upon the application of any foreigner as against an American the court 
would be obliged to enforce the laws applying to trade-marks, and so 
forth. As you are well aware, this whole matter of trade-marks is a 
subject of treaty, and was taken up by Germany, England, Japan, 
France, and the United States, I believe, in 1903 or thereabouts, and 
they covered this whole trade-mark business; but these treaties, as I 
understand, have not yet been ratified entirely, so that all the pro¬ 
visions of trade-marks which they cover have not been put in force. 
Now, I suggest that the United States courts be given power to 
enforce the law regarding trade-marks in their discretion in favor of 
foreigners who give us a reciprocal protection. 

Mr. Denby. I think that is a good point. 

Mr. Fessenden. I will cite an illustration. The Japanese have 
shown a marked tendency to appropriate American trade-marks, and 
to refuse to extend any protection to the citizens of any other nation 
who apply for protection against infringement by the Japanese. I 
think it would not be wise for the American courts to protect a Japan¬ 
ese subject, for instance, as against an American, when an American 
subject does not get like protection in a Japanese court against 
infringement of an American trade-mark by Japanese. I think that 
inasmuch as this is a matter of treaty out there, the condition that 
exists there should be borne in mind; and I cite you an actual exam¬ 
ple, which will illustrate what I mean. I traveled the whole length of 
the Imperial Railway from Ching Wan Taow to Tientsin shortly after 


16 


CHINESE COURT BILL. 


the British-American Tobacco Company had sent their advertising car 
along that route and placed their advertisements along the line of the 
railroad track. Shortly after that a Japanese tobacco company, trav¬ 
ersing the same route, painted out the name of the British-American 
Tobacco Company from the advertisement and inserted their own 
name, and up to the present time I have still to learn that the British- 
American Tobacco Company could get any redress. 

It is a well-known fact in the business community in the East that 
just before the Japanese trade-mark law came into operation certain 
Japanese individuals filed with the Japanese Government American 
trade-marks as their own, among them being, as reported, those of 
the Singer Sewing Machine Company and the Columbia bicycles 
and other firms and compelled the real owners of those trade-marks 
to buy them back from the individuals who registered them, and no 
redress could be obtained from the Japanese courts. 

Mr. Denby. That was in Japan? 

Mr. Fessenden. Yes. 

Mr. Denby. In order to get their registration in they had to buy 
them back from those fakirs. 

Mr. Fessenden. Yes. No single business question in the East 
has given us quite so much difficulty as this trade-mark question, and 
although a strong attempt has been made to regulate it by treaty, 
the provisions of the treaty have not come into effect, because it was 
reported that the Japanese and possibly others are not really acting 
with a bona fide intention of submitting to reciprocal protection. 
That is what it amounts to. Therefore I think the court should be 
given discretion as to whether it should enforce the laws of the 
United States in such cases. 

Mr. Denby. On page 21, line 5, this clause appears, that- 

Real property in China belonging at the time of his death to a citizen of the United 
States dying after the date when this act shall become of force shall be deemed to 
be personalty, and shall be subject to the law herein provided for the administration 
and devolution of an estate of personalty. 

That section seems to be a very necessary and important one. 

Mr. Fessenden. So far as I can see, it seems to be a very excellent 
one. That is my opinion. 

Mr. Denby. Mr. Fessenden, is it not true that one of the great dif¬ 
ficulties in administering estates in China, which are possessed of 
realty, is to determine what law shall govern? 

Mr. Fessenden. Precisely. 

Mr. Denby. The rule in the United States, of course, is that the 
law of the site of realty shall govern, but in these instances the law 
of the site of the realty is Chinese law, complicated and difficult to 
administer. That is the reason, is it not, why it is advisable to put 
in this section? 

Mr. Fessenden. Yes, sir. I do not see that any possible harm 
could come from regarding real property in that way, because the 
British practice for years out there has been to disregard the law of 
real property in matters of dower and transmission of decedents' 
property. They have never followed the law at home, because it is 
practically impossible to do that. 

Mr. Denby. The realty remains realty while the parties are living? 

Mr. Fessenden. Yes. 



CHINESE COURT BILL. 17 

% 

Mr. Denby. When it comes to the administration of estates of 
decedents, it becomes personalty, and this is a very good provision ? 

Mr. Fessenden. Yes, sir. 

Mr. Denby. Have you any comments to make on the provision 
beginning on page 24, that—• 

Any offense committed by a citizen of the United States on a ship of American 
registry, or on a ship of foreign registry in the company of which ship he was not 
enrolled, or on a Chinese or other ship not lawfully entitled to claim the protection of 
the flag of any recognized state or power, on the high seas at a distance of not more 
than two hundred miles from the coast of China and beyond the jurisdictional waters 
of another state or power, said ship being bound for or first coming into a Chinese port, 
shall be deemed an offense within the jurisdiction of the United States in China for all 
purposes equally as if committed within the territorial jurisdiction of China. 

Mr. Fessenden. I do not see any objection to it. That is all 
right, I think. 

In the next paragraph, beginning on line 13, in regard to the deten¬ 
tion of American ships pending trials, a serious question arises— 
whether the end in view justifies the broad power given. I would 
like just to call the attention of the committee to the great extent of 
the power given and the trifling character of the ordinary offenses 
committed on those vessels. Another consideration is that, as some¬ 
times happens, employees on a vessel have a grudge against the own¬ 
ers or the officers of a ship, and this provision might put it in their 
power to serve their grudge to their heart’s content without danger 
or cost to themselves and to embarrass the innocent owners of the 
ship. 

Now, I think this extradition provision is very good and very 
important. 1 do not know just how it would always, work, but I 
would imagine it would work well. 

Mr. Denby. You have read that extradition clause, have you, and 
find it all right in a general way? 

Mr. Fessenden. Yes. It will have to be tried before it becomes 
absolutely perfect; but it will work out, I think. 

Mr. Denby. Now as to nationality, on page 28. What suggestion 
do you make as to that clause? 

Mr. Fessenden. I consider that section 14 is unnecessary, and 
that the law as it stands is sufficient, and sufficiently covers the 
subject-matter of that section. This is a radical change of estab¬ 
lished law, as to which, in my judgment, no conditions exist war¬ 
ranting it. It says: 

Sec. 14. Nationality. —In actions brought in the courts of the United States in 
China the petition or information or like pleading must allege that the defendant 
is a citizen of the United States or under the protection of the United States, and 
this allegation will be presumed to be true and need not be proved except when 
the defendant, under oath, denies that he is a citizen of the United States or under 
the protection of the United States. In criminal actions, wherein it is proved that 
the accused is commonly reputed to be a citizen of the United States or under the 
protection thereof, a plea of foreign nationality on the part of the defense shall be 
required to be proved affirmatively. 

You see, the consul-general and other officials object to the prin¬ 
ciple involved. 

Mr. Denby. You say they object to it? 

Mr. Fessenden. Yes. 

Mr. Denby. You think that clause or section rtiight come out 
bodily ? 

Mr. Fessenden. Yes. 

33735—08-2 


18 


CHINESE COURT BILL. 


Mr. Denby. Then we will pass on to section 15, as to rules of court. 
You approve of that substantially, I understand? 

Mr. Fessenden. I do. 

Mr. Denby. That does not change the existing law. 

Mr. Fessenden. So far as section 15 is concerned, I see no objec¬ 
tion. This is the rule now in effect. 

Mr. Denby. Now, Mr. Fessenden, speaking generally, you believe, 
do you not, that the enactment of this bill is not only advisable, 
but you may say absolutely necessary for the proper administration 
of j ustice and of our courts in China ? 

Mr. Fessenden. Yes, sir. The bill with the suggestions I have 
made is a good bill, and is necessary. 


